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New Minnesota Bill Addresses the Treatment of Pregnant Women in Prison

For the first time, policymakers in Minnesota have introduced legislation to improve pregnancy care for imprisoned women, including limits on shackling.

Broad in reach, the bill applies to all prisons and jails, for youth as well as adults.

While the bill is innovative for its dual focus on health care and shackling, it can be enhanced to better reflect community standards of care.

Ensuring access to health care?

The bill features many specific mandates and notable omissions. For example, although the bill requires educational materials about pregnancy and has three different provisions on mental health care, it is silent on the basic matters of prenatal care and nutrition.

The bill requires the head of each correctional facility “to ensure” that every woman is tested for pregnancy and if pregnant for sexually transmitted diseases, including HIV.

In practice, few pregnant women refuse HIV tests, but this language makes it sound as if they have no say in the matter.

Being diagnosed with HIV is a life-changing experience. Prison is scary and isolating, and the first few days inside the walls are an especially vulnerable time. Women in prison can’t just call a friend for support whenever they want.

As leading global health experts recognize, “The mental burden of being in prison, having a new pregnancy and discovering HIV infection can be devastating for the woman, and this is seldom adequately addressed in custodial environments.”

The bill should address counseling, consent, and confidentiality, as well as specialized medial care for women who are HIV-positive.

Doulas... for women who can afford to hire one

Perhaps the most striking provision in the bill has to do with doula care.

The bill reads: “if pregnant or recently given birth, has access to doula services if these services are provided by a certified doula without charge or the incarcerated woman pays for the services.”

It is surprising to see a bill “addressing the needs of incarcerated women related to pregnancy and childbirth” insert a provision like this in a list of mandated services.

The bill also mistakenly assumes that women have cash at their disposal to pay for a doula’s care. Women in prison are overwhelmingly poor. They earn pennies per hour at prison jobs. They rarely have private health insurance, and they lose their Medicaid coverage during incarceration.

Doula care is associated with positive birth outcomes, including lower rates of cesarean birth. And doula care plays an especially critical role for women in prison, providing emotional support and advocacy to women who are almost never allowed to have a loved one with them during labor and birth.

Given these benefits, policymakers and prison officials should be integrating this type of care into their health services operations, not passing the costs onto volunteers.

Limiting the use of shackles

If passed, this bill would make Minnesota the 19th state to regulate the use of shackles on pregnant women.

The bill absolutely bans the restraint of women in labor. There are no exceptions.

In another positive feature, the bill bans the use of waist chains.

The legislation would be stronger if it also banned the use of leg irons, a growing trend in statutes enacted over the past few years. Shackling a woman’s ankles together creates an obvious trip hazard.

The bill does not clearly outline what discretion a corrections employee has to restrain a woman who is pregnant.

During postpartum recovery, corrections employees may shackle a woman if they make “an individualized determination that the restraint is necessary to protect the safety of the woman or another, prevent damage to property, or prevent flight.”

This discretion is tempered by authority given to medical professionals, who can “direct” corrections officers to remove restraints from women during the first three days of postpartum recovery.

(Medical providers have no such authority when a woman is pregnant unless there is a “medical emergency.”)

Training and enforcement

On the plus side, all staff members who interact with pregnant women shall receive training on the permissible use of restraints.

On the down side, the bill needs reporting and oversight provisions. Several state statutes require that corrections officers document in writing each time they shackle a woman under the exceptions to the law, and require corrections agencies to provide those reports to the legislature or governor each year, as well as to make the reports available to the public.

Reporting is essential to see whether corrections agencies are following the law. Research inCalifornia and Texas shows that corrections agencies, especially jails, are not always quick to comply with new state statutes on shackling.

Moving forward

Like the bill working its way through the legislative process in Massachusetts and the one passed by California in 2005, the Minnesota bill encompasses health care as well as shackling.

This more comprehensive approach is important recognition that shackling is not the only problem that pregnant women in prison face.

Minnesota has a proud tradition of progressive policy and health promotion, and this bill has the support of a bipartisan team of sponsors. It can serve to raise awareness and ideally can be amended to better meet its own aim of improving the treatment of pregnant women in custody.

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